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Does History Matter …

In the public debate about abortion? This afternoon I attended the inaugural meeting of the American Constitution Society at the University of Wisconsin Law School. Professor Jane Larson discussed the history of abortion regulation in the United States. Professor Larson has written two amicus briefs to the United States Supreme Court on this topic. What follows are notes taken during the meeting.
Professor Larson referred to a brief that was signed by more than 400 historians across the U.S. The drafters of the brief were attempting to craft a ?consensus view of American historians” on the history of abortion. They felt that the facts were in their favor.

The big question for Professor Larson was, “Why was Roe v. Wade ever necessary?” In the 19th century, abortion was legal in the U.S. and was practiced openly. The story of how abortion came to be criminalized is fascinating.

In colonial America, abortion was legal prior to ?quickening? ? the point in time when a woman could feel the movement of the fetus. In fact, early American cookbooks often contained recipes for herbal abortion potions (we would call them “poisons”). Despite the legality of abortion, it was not an event that most people proclaimed publicly because it usually was viewed as evidence of extramarital sexual activity, which was strictly taboo.

What changed in the U.S. in the 19th century? In the late 1800s, of course, many things changed. We had the War Between the States, waves of immigrants from southern Europe, and the Industrial Revolution. During this time, the birth rate among white Protestant women declined dramatically because women were increasingly moving into the workplace. We can safely assume that people were not having less sex; abortion undoubtedly was one of the main reasons for the decline.

The first abortion regulation in the U.S. was an anti-poisoning law designed to protect women. (I didn’t catch the year, unfortunately.) Intrusion methods only became popular after disinfection was widely practiced. This corresponds to the professionalizatoin of the medical profession, and the division of health care providers into “regular” and “irregular” doctors. The latter group included midwives, who had traditionally provided a substantial amount of care to pregnant women. The intial moves to criminalize abortion were made by regular doctors, who wanted to cut out competition from ?irregular? doctors. That is, the regular doctors asserted their authority over reproduction in the name of science.

In the public debates, regular doctors relied on discriminatory ideas about women, like the need to control women?s sexuality. Women were seeking the right to vote, increased education, and the freedom to enter the workplace and professions. Men sensed that they were losing control over women, and the regular doctors decided to reassert control. (Professor Larson read some snippets from the public debates of the time to support this notion.)

The debate over abortion paralleled efforts to control sex. A common image employed in the public debates was the young woman who was seduced and then abandoned. It was thought that easy access to abortion would make women less cautious.

Finally, the abortion debate related importantly to immigration from southern Europe and the freeing of the slaves. The reduced birth rate of ?true Americans? (white Protestants) compared to the birth rates of Catholics and blacks was threatening. The criminalization of abortion would have the effect of increasing the birth rate of white babies that could be placed in Protestant homes.

Interestingly, the primary target of abortion laws was not the aborting woman, but rather the person who performed the abortion. The public rationale was a form of diminished capacity argument (the women were not capable of making a reasoned decision), but the ?real? reason was that anti-abortionists could not win by turning the women into criminals. No moral capacity to choose abortion = no moral responsibility for abortion.

Bottom line: the laws against abortion were not motivated primarily by concern for the life of the unborn or a deeply felt religious conviction, but rather by the desire of regular doctors to squeeze out competition, and the sexist and racist ideas of late 19th century power brokers (i.e., white males).

Back to Gordon: This is not a subject on which I have invested a lot of time, so I can’t vouch for the history. Many of the events seem plausible, though a lot of interpretation is going on here. But my main question for the group is this: does any of this history, if accurately conveyed, influence our thinking about the present abortion debate?

UPDATE: Lest there be any confusion, you can read my thoughts on the American Constitution Society here.

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18 Responses to Does History Matter …

Gary Cooper on April 1, 2004 at 12:37 am

Gordon,

I’m glad you posted this, because for those of who believe that the Church’s stand on abortion requires members to work to codify laws that conform with that stand, it is important to be familiar with all arguments, for and against abortion on demand. I think the pro-abortion argument that csn be drawn from Professor Larson’s talk may seem strong, but it would not persuade me, for three reasons.

1. The fact that the original restrictions placed on abortion may have been created for the wrong reasons, such as sexism, in and of itself does not argue the policy was actually wrong. After all, some of the reasons given in favor of female suffrage (“giving women the vote will mean fewer wars, because of their softer nature”) were sexist, but this does not mean we should now revoke the right to vote of women.

2. More importantly, restrictions on abortion should be viewed today by what we know today, not what we thought we knew in the past. The history is interesting, but that history does not answer important questions, such as “Is the fetus a human being?” “If so, when does the fetus become human?” “If the fetus is human, isn’t abortion homicide?” “If abortion is homicide, are there instances in which it is justifiable homicide?”, etc. These kinds of questions force us to look very carefully at what science can tell us, particularly in the light of the tremendous advances in perinotology that have taken place since Roe was decided in 1973. For me, this scientific evidence is overwhelmingly affirmative of the fact that human life begins at some point in the first trimester, and that we have enough knowledge now to encourage us to “err on the side of caution” by placing the very restrictions on abortion that the Lord has stated through the First Presidency (physical threat to the mother’s life, rape, incest, and where the child cannot survive at all outside the womb anyway), as well as other restrictions, such as requiring that abortiions be performed only in hospitals, requiring anesthesia for the fetus during abortion, requring resucitation efforts if the fetus is born alive, etc. Again, the history of the earlier restrictions cannot tell us much about whether we should impose restrictions now.

3. The Lord has spoken on this issue. I accept the principle of continuous revelation to the First Presidency, and understand that God can speak to us today and give instructions to us that are tailored to our needs TODAY. Obviously, this third reason is not one that could be readily used in a public forum to much effect, as it is more personal and meaningful to a small section of the voting public (Mormons).

Commenters seem to be missing the point of the presentation, which was that the criminalization of abortion was largely an expression of the professional interest of physicians in restricting the provision of medical services by alternative (and well established) practitioners, rather than any independent moral rejection of the practice. Thus laws were directed at those who performed abortions, rather than the women who received them.

Contrast with drug laws, which are directed both at distributors and possessors/users.

Interestingly, legalized abortion has happened at roughly the same time that the monopoly of MDs on the provision of medical services has broken down. Chiropractic and osteopathic approaches are more or less mainstream now, and a host of alternative approaches are vying for recognition and health insurance reimbursability (the key achievement).

Adam Greenwood on April 1, 2004 at 2:32 pm

I don’t think we’re missing the point of the presentation, Dave, we just dont’ see it as relevant to today’s debates.

“The history manages to make everyone look bad except the historians.”

Shocking that about the historians…

Kristine on April 2, 2004 at 10:13 am

What would be REALLY interesting is to know to what extent 19th-century Mormons followed common practices around abortion. Julie Nichols has done a little work on herbal formulas for inducing abortions that were known among Mormon women and midwives, but I don’t think anybody has uncovered any good historical sources.

The involvement of Mormon women in midwifery and the switch to M.D.s is really interesting–largely because of Brigham Young’s idiosyncratic views on medicine, midwifery and herbal medicine lasted significantly longer among the Saints than elsewhere in the West. However, Mormon women were also among the first accepted to eastern medical schools (Tufts, Michigan) when they opened their doors to women. Somebody oughtta write that book!

As opposed to the American Constitutional Society, which is known for being impartial.

The idea that 19th century anti-abortion statutes were enacted for every reason except concern for the unborn is frankly ridiculous, so reading Olasky really shouldn’t be necessary. But if you need evidence, I would suggest reading the statements of early feminists on the matter: http://www.feministsforlife.org/history/herstory/

Here are some quotes from doctors and medical treatises throughout American history:

1671: “give not any of those [abortion potions] to any that is with Child, lest you turn Murthers, wilful Murther seldom goes unpunished in this World, never in that to come.”

1684: “[Do not] give directions for such Medicines as will cause abortion, to pleasure those that have unlawfully conceived, which to do is a high degree of wickedness, and may be ranked with Murther.”

1712: “If any purposely endeavor to destroy the Fruit of their Womb (whether they actually do it or not) they’re gulity of Murder in God’s account.”

1809: “I must remark that many people at least pretend to view attempts to excite abortion as different than murder upon the principle that the embryo does not possess of life [for] it undoubtedly can neither think or act, but upon the same reasoning we should conclude it to be innocent to kill the child in birth. Whoever prevents life from continuing, until it arrives at perfection, is certainly as culpable as if he had taken it away after that had been accomplished.”

1853: “If examined three to four weeks from the commencement of pregnancy, the embryo will be found to have about the size of a grain of wheat… It is a Human Being. It is one of the human family as really and truly as if it had lived six months or six years; consequently, its life should be as carefully and tenderly cherished… no person has the right to destroy it by any means whatever.”

Nor were doctors the only ones who favored anti-abortion laws. The New York Times editorialize against abortion, saying that the “perpetration of infant murder… is rank and smells to heaven” and that “thousands of human beings” were being “murdered before they have seen the light of this world.”

Now I’m sure that some opponents of abortion made arguments that were racist or sexist or otherwise unpalatable. I would imagine the same is true of just about every issue. Racism and sexism were then a part of the social fabric. But to say that concern for the unborn had nothing to do with it is just absurd.

As opposed to the American Constitutional Society, which is known for being impartial.

The idea that 19th century anti-abortion statutes were enacted for every reason except concern for the unborn is frankly ridiculous, so reading Olasky really shouldn’t be necessary. But if you need evidence, I would suggest reading the statements of early feminists on the matter: http://www.feministsforlife.org/history/herstory/

Here are some quotes from doctors and medical treatises throughout American history:

1671: “give not any of those [abortion potions] to any that is with Child, lest you turn Murthers, wilful Murther seldom goes unpunished in this World, never in that to come.”

1684: “[Do not] give directions for such Medicines as will cause abortion, to pleasure those that have unlawfully conceived, which to do is a high degree of wickedness, and may be ranked with Murther.”

1712: “If any purposely endeavor to destroy the Fruit of their Womb (whether they actually do it or not) they’re gulity of Murder in God’s account.”

1809: “I must remark that many people at least pretend to view attempts to excite abortion as different than murder upon the principle that the embryo does not possess of life [for] it undoubtedly can neither think or act, but upon the same reasoning we should conclude it to be innocent to kill the child in birth. Whoever prevents life from continuing, until it arrives at perfection, is certainly as culpable as if he had taken it away after that had been accomplished.”

1853: “If examined three to four weeks from the commencement of pregnancy, the embryo will be found to have about the size of a grain of wheat… It is a Human Being. It is one of the human family as really and truly as if it had lived six months or six years; consequently, its life should be as carefully and tenderly cherished… no person has the right to destroy it by any means whatever.”

Nor were doctors the only ones who favored anti-abortion laws. The New York Times editorialize against abortion, saying that the “perpetration of infant murder… is rank and smells to heaven” and that “thousands of human beings” were being “murdered before they have seen the light of this world.”

Now I’m sure that some opponents of abortion made arguments that were racist or sexist or otherwise unpalatable. I would imagine the same is true of just about every issue. Racism and sexism were then a part of the social fabric. But to say that concern for the unborn had nothing to do with it is just absurd.

Also, as an afterthought, people who favor legalized abortion historically haven’t been immune from making racist arguments either. Margaret Sanger, the founder of Planned Parenthood, used to make them frequently. So if history can discredit the present, I would suggest that it is pro-choicers who should be most concerned.

justme on April 14, 2004 at 6:40 pm

not “most concerned” merely as concerned, because a large percent of people who are vocal about their racism have not truly thought through what they are saying, just as people who say that a person has the right to tell another person what he/she can and can’t do with his/her own body have also not thought through what they are saying.